Wallace v. Russell

FILED
United States Court of Appeals
Tenth Circuit
June 17, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
CHARLES WALLACE; LANITA
WALLACE,
Plaintiffs - Appellants, No. 08-6044
v. (W.D. Oklahoma)
THOMAS R. RUSSELL, M.D.; (D.C. No. 5:07-CV-01268-R)
MICHAEL TRIBBEY, M.D.,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
On September 18, 2007, Charles and Lanita Wallace filed in the United
States District Court for the Eastern District of Oklahoma a pro se medical-
malpractice and civil-rights claim against Thomas R. Russell and Michael
Tribbey. On November 7 the court transferred the case to the United States
District Court for the Western District of Oklahoma and that court notified the
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
parties on December 7 that a status/scheduling conference had been set for
February 5, 2008. Despite the nearly two-months’ notice, the Wallaces failed to
appear. The court therefore dismissed the action on February 7 without prejudice.
The Wallaces appeal. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Federal Rule of Civil Procedure 16(f) “give[s] courts very broad discretion
to use sanctions where necessary to insure . . . that [parties and their lawyers]
fulfill their high duty to insure the expeditious and sound management of the
preparation of cases for trial.” Mulvaney v. Rivair Flying Serv., Inc. (In re
Baker), 744 F.2d 1438, 1440 (10th Cir. 1984) (en banc). To this end, “if a
party . . . fails to appear at a scheduling or other pretrial conference,” the district
court may “issue any just orders, including those authorized by Rule
37(b)(2)(A)(ii)–(vii).” Fed. R. Civ. P. 16(f)(1). Among those authorized orders
is an order dismissing the action. See id. at 37(b)(2)(A)(v). We review such
decisions for an abuse of discretion. See Gripe v. City of Enid, Okla., 312 F.3d
1184, 1188 (10th Cir. 2002). Although we require the district court to consider
certain factors before dismissing a case with prejudice, we apply a relaxed abuse-
of-discretion standard for dismissals without prejudice. See Nasious v. Two
Unknown BICE Agents, 492 F.3d 1158, 1161–62 (10th Cir. 2007).
The Wallaces make no attempt to show that the district court’s application
of Rule 16 in this case constituted an abuse of discretion. In particular, they offer
no explanation why they were unable to attend the scheduling conference.
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Instead, they simply restate their claims against Drs. Russell and Tribbey and
contend that bias governed the court’s consideration of the merits of their claim.
Because we have been presented with no basis for ruling that the district
court abused its discretion, we AFFIRM the district court’s dismissal without
prejudice.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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